The common question which arises in all these
cases on a reference made by a learned Single Judge of this
Court is 'whether a police report submitted under Section 173
(2) of the Code of Criminal Procedure, 1973 (hereinafter
referred to as the Code) can be treated as a complaint for the
purpose of taking cognizance under Section 25 of the
Protection of River Bank and Regulation of Removal of Sand
Act, 2001 (hereinafter referred to as the 'Act') ?

2. The learned Single Judge of this Court
(incidentally the very same Judge who passed the order of
reference has in Mohanan v. S.I. of Police (2008 (1) KLT 560)
which was decided on 22.1.2008 proceeded to take the view
that the word 'complaint' has not been defined under the Act
and the police report satisfies the essential requisites of a
CRL.MC No.935/2010 & connected cases -2-

complaint and since an officer in charge of a police station is
one of the authorised officers under the Act even if the report
is submitted under Section 173 (2) of the Code it can be
treated as a complaint. Learned Single Judge took the view
in the said decision that there is no illegality in the Court
taking cognizance on the basis of the said report. A Division
Bench of this Court in Moosakoya v. State of Kerala (2008 (1)
KLT 538) had proceeded to consider among various issues
the question as to whether the Court can under the Act take
cognizance of any offence on the basis of a police report filed
under Section 173 (2) of the Code. The said decision was
rendered on 5.12.2007. Therein the Court inter alia held as
follows:

"3. A plain reading of the above provision will show
that even though by S.24 all offences under the Act are
made cognizable, no court can take cognizance of the
offence except upon a written complaint made by a
person authorised in this behalf by the Government or
the District Collector or a Geologist of the Department
of Mining and Geology. A 'complaint in writing' by the
authorised officer etc is the only condition for taking
cognizance as provided in S.25. If a police officer is
authorised by the Government, he may also file a
complaint on the basis of which the court may take
cognizance. But, the court cannot take cognizance of
any offence punishable under the Sand Act on a police
report filed under S.173 (2) of the Cr.P.C after
investigation by police.............."

3. Still later, the Apex Court had occasion to
consider the correctness of the decision of the Division Bench
CRL.MC No.935/2010 & connected cases -3-

which we have just referred in Jeewan Kumar Raut vs. Central
Bureau of Investigation (AIR 2009 SC 2763). The said
decision was rendered on 7.7.2009. Therein the Court was
considering the question under the Transplantation of Human
Organs Act 1994. In the course of the discussion the Apex
Court had occasion to refer to the judgment of the Division
Bench of this Court and we notice that the Court held as
follows.

"3. A plain reading of the above provision will show that even though
by Section 24 all offences under the Act are made cognizable, no
Court can take cognizance of the offence except upon a written
complaint made by a person authorised in this behalf by the
Government of the District Collector or a Geologist of the
Department of Mining and Geology. A 'complaint in writing' by the
authorised officer etc. is the only condition for taking cognizance as
provided in Section 25. If a police officer is authorised by the
Government, he may also file a complaint on the basis of which the
Court may take cognizance. But, the Court cannot take cognizance of
any offence punishable under the said Act on a police report filed
under Section 173 (2) of the Cr.P.C. after investigation by
police...........

We, with respect, agree with the said
observations."

4. The very same question, namely as to whether a
police report under Section 173 (2) could be treated as a
complaint, came up before another learned Single Judge of
this Court in Abdul Azeez v. State of Kerala (2010 (1) KLT

394) and the learned Single Judge proceeded to hold as
CRL.MC No.935/2010 & connected cases -4-

follows:

"9. In the light of the declaration of law by the Apex
Court in Jeewan Kumar's case (supra) approving the
Division Bench decision of this court in Moosakoya's
case and in view of mandatory provisions of S.25 of
the Act, it can only be held that Judicial First Class
Magistrate is not empowered to take cognizance of
the offence on a final report filed under S.173(2) of
the Code of Criminal Procedure and Magistrate can
take cognizance only on a complaint in writing made
by the officer authorised as provided under S.25.
Even if the Sub Inspector who filed the final report is
an authorised officer under the Act, only if he files a
complaint, the Magistrate can take cognizance and
not on a final report submitted under S.173 (2) of
Code of Criminal Procedure. As the learned
Magistrate has taken cognizance in both cases on a
final report submitted under S.173 (2) of Code of
Criminal Procedure, the cognizance taken can only be
quashed."

5. The matter comes before us on the basis of an
order of reference and we will refer to the reference order in
its entirety. It reads as under:

"Petitioner who is the accused in Crime No.687 of
2009 of Anthikkad Police Station for an offence
punishable under Sec.20 of the Protection of River
Bank and Regulation of Removal of Sand Act, 2001
("the Sand Act" for short) and now pending before the
J.F.C.M.-II, Thrissur as C.C.No.2698 of 2009, seeks to
quash Annexure B final report on the ground that
cognizance taken by the Magistrate on a police report
is bad in law. The petitioner relies on the following
decisions:-

2. It is true that in all the decisions cited by the
learned counsel for the petitioner it has been held that
since under the Sand Act or the Electricity Act, 2003
CRL.MC No.935/2010 & connected cases -5-

cognizance can be taken only on a complaint, the
cognizance taken by the court on a final report under
Sec.173 (2) Cr.P.C. is bad in law. But in none of those
decisions the question as to whether the final report
filed under Sec.173 (2) Cr.P.C. would answer the
definition of a "complaint" under Sec.2 (d) Cr.P.C and
whether the final report so understood could be
treated as "complaint" did not come up for
consideration. There is no dispute that under the
Sand Act, the Police have been empowered to file a
complaint. Instead of filing a complaint the Police
have filed a charge sheet. If the police report
purportedly filed under Sec.173 (2) Cr.P.C. and
labelled as a final report answers the definition of a
"complaint" under Sec.2 (d) Cr.P.C. then the
nomenclature of the report need not deter the
Magistrate from taking cognizance of the offence. This
question had been pointedly answered in Mohanan v.
S.I. of Police-2008 (1) KLT 56. But the learned Judge
who decided Abdul Azeez has refused to follow
Mohanan's case (supra) on the ground that the matter
is covered by the decision of the Division Bench and of
the Supreme Court adverted to therein. With due
respect, the question as to whether in cases where
the Police have been empowered to file a complaint, if
the Police instead of filing a complaint file a police
report under Sec.173 (2) Cr.P.C. whether such report
could be treated as a complaint, if such report
answers the definition of a complaint, did not arise for
consideration in any of the aforesaid decisions. This
aspect of the matter requires an authoritative
pronouncement by a Division Bench.

The Registry shall place the file before the
Hon'ble the Chief Justice for orders."

6. We proceeded to hear the learned counsel
appearing for the petitioners and also learned Public
Prosecutor Sri.S.V.Nazar.

The question which falls for our consideration as
already noted is whether the word 'complaint' which is
contemplated in S.25 of the Act is capable of embracing within
CRL.MC No.935/2010 & connected cases -6-

its scope a police report under S.173(2) of the Code. It is
necessary for us to refer to certain provisions. The word
'complaint' is defined in Section 2 (d) of the Code. It reads as
under.

"complaint" means any allegation made orally or in
writing to a Magistrate, with a view to his taking action
under this Code, that some person, whether known or
unknown, has committed an offence, but does not include
a police report.

Explanation--A report made by a police officer in a case
which discloses, after investigation, the commission of a
non-cognizable offence shall be deemed to be a complaint;
and the police officer by whom such report is made shall
be deemed to be the complainant;"

Section 2 (r ) of the Code defines police report as
hereunder:

"police report" means a report forwarded by a police
officer to a Magistrate under sub-section (2) of section

173."

7. Under the Act, Sec.24 declares that
notwithstanding anything contained in the Code all offences
under the Act are cognizable. Thereafter Sec.25 which deals
with taking cognizance of offences reads as under.

"25. Cognizance offences: No court shall take cognizance of
any offence punishable under this Act, except upon a
complaint in writing made by a person authorised int his
behalf by the Government or the District Collector or a
Geologist of the Department of Mining and Geology".

8. There is no dispute that in all these cases what
are filed are police reports under Sec.173 (2) of the Code.

Learned Public Prosecutor does not dispute that it is filed as
CRL.MC No.935/2010 & connected cases -7-

police reports under Sec.173 (2) of the Code and that there is
nothing to indicate in the reports that they are filed as
complaints under Sec.25 of the Act. It is in the conspectus of
this undisputed facts presented we have to consider the issue
which is referred. There is no dispute that in terms of Sec.25
of the Act Government of Kerala has issued a notification in
the gazette dated 18.1.2007 authorising certain officials under
Sec.25 of the Act. The notification reads as under:

S.R.O.No.64/2007- In exercise of the powers conferred by S.25 of the Kerala Protection of
River Banks and Regulation of Removal of Sand Act, 2001 (18 of 2001), the Government of
Kerala hereby authorise the Revenue Divisional Officers, Tahsildars, Deputy Tahsildars,
Superintendents of Police, the Deputy Superintendents of police and Station House Officers
to exercise the power to make a complaint in writing in respect of any offence punishable
under the said Act.

By order of the Governor,
Dr.Nivedita P.Haran
Principal Secretary to Government.

9. Learned counsel for the petitioners Sri. Sunny
Mathew and Sri. Sethu Nath led the arguments on behalf of
the petitioners. They would submit that the decision rendered
by the learned Single Judge in Abdul Azeez v. State of Kerala
(2010 (1) KLT 394) lays down the correct law. They would
further submit that the principle laid down by the learned
Single Judge is in consonance with the law declared by the
CRL.MC No.935/2010 & connected cases -8-

Apex Court in Jeewan Kumar Raut vs. Central Bureau of
Investigation (AIR 2009 SC 2763) and there is no basis at all
to take a different view in the matter. There is also a
contention raised by one of the petitioners represented by
Sri.M.R.Rajesh that in fact there was no basis for the learned
Single Judge for referring the matter to the Division Bench.
This contention he would urge by placing reliance on the
decision of the Apex Court in Suganthi Suresh Kumar vs.
Jagdeeshan (2002 (2) SCC 420). According to him, once the
law is laid down by the Apex Court it becomes binding on the
Courts subordinate to it. It matters little that a particular
point was not urged before the Court or considered by the
Court before it proceeded to lay down the law. In other
words, the efficacy of the declaration of law will not in any
manner be diluted or whittled down on the basis of a
contention that a decision was rendered without considering a
particular aspect which could have been urged. In the said
decision the Apex Court held as follows:

"9. It is impermissible for the High Court to overrule
the decision of the Apex Court on the ground that the
Supreme Court laid down the legal position without
considering any other point. It is not only a matter of
discipline for the High Courts in India, it is the mandate
of the Constitution as provided in Article 141 that the
law declared by the Supreme Court shall be binding on
all courts within the territory of India. It was pointed
out by this Court in Anil Kumar Neotia v. Union of India
CRL.MC No.935/2010 & connected cases -9-

that the High Court cannot question the correctness of
the decision of the Supreme Court even though the
point sought before the High Court was not considered
by the Supreme Court."

".................It was, therefore, open to those affected by
the provisions of Chapter IV-A to have agitated before this
Court the question which is being raised now based on the
guarantee embodied in Art.19 (i) (f) which was never
done. It is apparently too late in the day now to pursue
this line of argument, in this connection we may refer to
the observations of this Court in Mohd. Ayub Khan v.
Commr. of Police Madras, (1965) 2 SCR 884: (AIR 1965 SC
1623) according to which even if certain aspects of a
question were not brought to the notice of the court it
would decline to enter upon re-examination of the question
since the decision had been followed in other cases. In
Smt.Somawanti v. State of Pujnab, (1963) 2 SCR 774:
(AIR 1963 SC151) a contention was raised that in none of
the decisions the argument advanced in that case that a
law may be protected from an attack under Art.31(2) but it
would be still open to challenge under Art.19 (1) (f) had
been examined or considered. Therefore, the decision of
the Court was invited in the light of that argument. This
contention, however, was repelled by the following
observations at page 794:-

"The binding effect of a decision does not depend upon
whether a particular argument was considered therein or
not, provided that the point with reference to which an
argument was subsequently advanced was actually
decided."

The learned Single Judge in Mohanan's case
(supra) proceeded to hold inter alia as follows:

Here, the Sub Inspector of Police, Koyippuram, who filed the
final report on 16.9.2007, ie. after the notification was
published on 18.1.2007, was doing so not in his capacity as
CRL.MC No.935/2010 & connected cases -10-

the police officer but in his capacity as the authorised officer
under S.25 of the Act. Hence, it is not a police report under
S.173 (2) Cr.P.C. forwarded by a police officer. If so, it
cannot be treated as a "police report" as contemplated under
S2 (r ) Cr.P.C. It is not the label or nomenclature of the
report which matters. What is to be examined is as to
whether the said report satisfies the definition of a complaint
falling under S.2 (d) Cr.P.C. Thereafter the learned Single
Judge proceeded to refer to the following decisions Surajmani
Srimali vs. State of Orissa (1980 CRL LJ 363), Bholanath v.
State of Gujarat (AIR 1971 SC 194), State of Bihar v. Chandra
Bhushan Singh (AIR 2001 SC 429), K. Rama Krishnan v.
Station House Officer, Hosdurg (1986 CRL. LJ 392) besides
State of Kerala v. Sreedharan (1964 KLT 309) and Bhimappa
Bassappa Bhu Sannavar v. Laxman Shivarayappa Samagouda
& Ors. (AIR 1970 SC 1153). Of course, the learned Single
Judge had no occasion to consider the decision of the Division
Bench in Mossakoya's case (supra).

11. In Bholanath v. State of Gujarat (AIR 1971
SC 194) the Apex Court was considering a case under the
Indian Post Office Act 1898. The question for consideration in
that case arose under the provisions of Sec.72 of the Indian
CRL.MC No.935/2010 & connected cases -11-

Post Office Act. Sec.72 of the Post Office Act reads as under:
"No court shall take cognizance of an offence punishable under
any of the provisions of Sections 51, 53, 54, Clauses (a) and

(b), 55, 56, 68, 69, 61, 64, 65, 66 and 67 of this Act, unless
upon complaint made by order of, or under authority from, the
Director General or a Post Master General."

12. The case against the appellant therein was
taken cognizance of on the basis of a report filed by the police
under Sec.173 of the Code after making enquiry under
Chapter XIV of that Code. The investigation of the case was
launched on the basis of the information given by postal
authorities. The court proceeded to state that it will even
assume investigation in question was made after obtaining
the sanction of the concerned Post Master General, thereafter
the court referred to the definition of the word "complaint" in
Sec. 4 (1) (h) and proceeded to hold as follows:
".................The context in which that expression is used in Section 72
indicates that it is a formal document indicting an officer of the postal
department for a criminal offence. The purpose behind Section 72 is that
officials of the postal department should not be harassed with frivolous
prosecutions and that before any of the prosecutions contemplated by
Section 72 is launched, the authorities mentioned in that Section should
have examined the appropriateness of launching a prosecution and either
file a complaint themselves or authorize the filing of such a complaint.
Such a requirement will not be satisfied if the concerned authorities merely
ask the police to investigate into the case and take appropriate action. An
information laid before the police or even a sanction granted for a
prosecution by the police would not meet the requirements of Sec.72. If the
legislature contemplated that a mere information to the police by the
appropriate authority is sufficient then there was no need to enact Section
CRL.MC No.935/2010 & connected cases -12-

72.................................."

13. The learned Single Judge proceeded to take
the view with reference to the said decision that there was no
complaint before the Magistrate by order of or under authority
from any of the officials enumerated under S.72 of the Indian
Post Office Act, 1898 and what was before the Magistrate was
only a final report by the police who were not one of the
enumerated authorities under S.72 of the Post Office Act and
hence distinguished that case.

14. A learned Single Judge of the Orissa High
Court in Surajmani v. State of Orissa (1980 CRL L.J. 363) has
proceeded to consider a case under the Orissa (Scheduled
Area) Money Lenders' Regulation 1967 and held as follows:

"Charge-sheet submitted by the police in respect of a
cognizable offence cannot be held to be a complaint as
defined in the Code. A complaint in writing is a sine qua
non under the mandatory provisions of Section 23 of the
Regulation. The purpose behind Section 23 is that the
persons carrying on business of money-lending should
not be harassed with frivolous prosecutions. The
mandate of this section is that the Magistrate should not
take cognizance of an offence unless there is a formal
complaint as contemplated under the Code of Criminal
Procedure. If the provision of any law gives jurisdiction
only on the compliance of a certain condition precedent,
then non-compliance of such a provision goes to cut at
the root of the jurisdiction f the Court. Threfore
cognizance taken by a Magistrate under Section 23 of
Regulation on the basis of charge-sheet submitted by
the police would be without jurisdiction."

15. In Bhimappa Bassappa Bhu Sannavar v.

CRL.MC No.935/2010 & connected cases -13-

Laxman Shivarayappa Samagouda & Ors. (AIR 1970 SC
1153) the Apex Court had occasion to deal with the concept of
complaint as defined in Sec.4 (1) (h) of the Cr.P.C. 1898 and
the Apex Court proceeded to hold as follows:

"The word 'complaint' has a wide meaning since it
includes even an oral allegation. It may, therefore, be
assumed that no form is prescribed which the complaint
must take. It may only be said that there must be an
allegation which prima facie discloses the commission of
an offence with the necessary facts for the Magistrate to
take action."

309) for the non-appearance of the complainant on the date of
hearing the Magistrate acquitted the accused. The contention
was that it would not come within the operation of Sec.247 as
it was not started on a complaint but on the report of the
prohibition officer. The Court proceeded to hold as follows:

"..................The expression 'complaint' is comprehensive
enough to include reports of public officers except those
specifically excluded from its operation. The report of the
prohibition officer, therefore, falls within the definition of
S.4 (h) of the Criminal Procedure Code and consequently
S.247 Cr.P.C. would apply. This view of mine is reinforced
by a judgment of a Bench of the Calcutta High Court in
Radhik Mohan Das v. Hamid Ali (ILR 54 Cal 371) and the
case of the Andhra High Court in Public Prosecutor v. Shaik
Dawood (1956-2A.W.R.642)."

seeking to quash the proceedings on the basis of a charge-
sheet which was launched against the petitioner for the
alleged commission of offence under Sec.211 of the IPC.
Petitioner contended that the Magistrate went wrong in taking
cognizance of offence under Sec.211 as under Sec.195 (1) (b)

(i) of the Code no Court can take cognizance except on a
complaint in writing of the concerned Court or some other
Court to which that Court is subordinate. The Court
proceeded to refer to the definition of the word 'complaint' in
the Code and proceeded to hold that the offence under
Sec.211 IPC is non-cognizable offence and after stating that it
could be argued that for the purpose of Sec.195 (1) (b) (i) the
report could be treated as a complaint, but, further proceeded
to hold that it could not be treated as a complaint in writing
filed by the concerned court. The learned Single Judge also
referred to the bar under Sec.155 of the Code against
investigation of non-cognizable offence without an order from
the Magistrate.

Singh further recovery of 136 bags of cement in addition
to the cement already seized was effected. Shri M.I.Khan,
IPF/SPJ inquired the case and submitted the complaint
before the Magistrate. Copy of the complaint has been
annexed with this appeal as Annexure P-3. A perusal of
Annexure P-3 unambiguously indicates that it was not a
report within the meaning of Section 173 of the Code but
a complaint filed before the Magistrate, obviously under
Section 200 of the Code. The process against the
accused appears to have been issued under Section 204
of the Code. By no stretch of imagination, Exhibit P-3 can
be termed to be a report within the meaning of Section
173 of the Code."

Thereafter, the Court also referred to Sec.2 (d) of
the Code defining the word 'complaint' and proceeded to hold
as follows:

"Section 2 (d) of the Code encompasses a police report
also as a deemed complaint if the matter is investigated
by a police officer regarding the case involving
commission of a non-cognizable offence. In such a case,
the report submitted by a police officer cannot be held to
be without jurisdiction merely because proceedings were
instituted by the police officer after investigation when he
had no power to investigate."

19. We may notice two aspects of the case. A
perusal of paragraph 6 would show that what was filed by
the complainant was actually a complaint and that it was not a
report within the meaning of Sec.173 of the Code. It is also
further noticed that the offence is a non-cognizable offence.

There can be no doubt that in respect of non-cognizable
offence a police report also can be treated as a complaint.
Finally, we must refer to the decision of the Apex Court
reported in Jeewan Kumar Raut vs. Central Bureau of
CRL.MC No.935/2010 & connected cases -16-

Investigation (AIR 2009 SC 2763) in some greater deal.
Therein, the question actually arose in the context of
Transplantation of Human Organs Act 42 of 1994). (TOHO Act
for short). The appellants were medical practitioners. The FIR
was launched under Sec.420 of IPC and Sec.18 and 19 of the
TOHO Act. Thereafter, investigation was entrusted to the
CBI. The appellants 1 and 2 surrendered and was arrested
respectively. A complaint was lodged under Sec.22 of the
TOHO Act by the CBI. The appellant sought shelter under
Sec.167 (2) of the Code and contended that he was entitled
to bail. The Magistrate took the view that a written complaint
is required under the TOHO Act, and, therefore qua the
offences under TOHO Act it seems to be a complaint. But, in
respect of various offences under the IPC allegedly committed
it is a police report and therefore it is found that the report
was filed within a period of 90 days. The High Court
confirmed the finding. In the course of the judgment the
Apex Court proceeded to hold as follows:

"19. Section 22 of TOHO prohibits taking of cognizance
except on a complaint made by an appropriate authority
or the person who had made a complaint earlier to it as
laid down therein. Respondent, although, has all the
powers of an investigating agency, it expressly has been
statutorily prohibited from filing a police report. It could
file a complaint petition only as an appropriate authority
so as to comply with the requirements contained in
Section 22 of TOHO. If by reason of the provisions of
CRL.MC No.935/2010 & connected cases -17-

TOHO, filing of police report by necessary implication is
necessarily forbidden, the question of its submitting a
report in terms of sub-section (2) of Section 173 of the
Code did not and could not arise. In other words, if no
police report could be filed, sub-section (2) of Section
167 of the Code was not attracted.

20. It is a well-settled principle of law that if a special
statute lays down procedures, the ones laid down under
the general statutes shall not be followed. In a situation
of this nature, the respondent could carry out
investigations in exercise of its authorisation under
Section 13 (3) (iv) of TOHO. While doing so, it could
exercise such powers which are otherwise vested in it.
But, as it could not file a police report but a complaint
petition only; sub section (2) of Section 167 of the Code
may not be applicable. The provisions of the Code, thus,
for all intent and purport, would apply only to an extent
till conflict arises between the provisions of the Code and
TOHO and as soon as the area of conflict reaches.
TOHO shall prevail over the Code. Ordinarily, thus,
although in terms of the Code, the respondent upon
completion of investigation and upon obtaining remand
of the accused from time to time was required to file a
police report, it was precluded from doing so by reason
of the provisions contained in Section 22 of TOHO.

To put it differently, upon completion of the
investigation, an authorised officer could only file a
complaint and not a police report, as a specific bar has
been created by the Parliament. In that view of the
matter, the police report being not a complaint and vice-
versa, it was obligatory on the part of the respondent to
choose the said method invoking the jurisdiction of the
Magistrate concerned for taking cognizance of the
offence only in the manner laid down therein and not by
any other mode. The procedure laid down in TOHO,
thus, would permit the respondent to file a complaint
and not a report which course of action could have been
taken recourse to but for the special provisions
contained in Section 22 of TOHO."

20. The Apex Court also proceeded to refer to
Mossakoya's case (supra) and we have already extracted the
said paragraph. No doubt, it has also proceeded to hold in
CRL.MC No.935/2010 & connected cases -18-

paragraphs 24 and 29 as follows:

"24. For the views we have taken, we are of the opinion
that stricto sensu sub-section (2) of Section 167 of the
Code would not apply in a case of this nature.

Even assuming for the sake of argument that sub-
section (2) of Section 167 of the Code requires filing of a
report within 90 days and the complaint petition having
filed within the said period, the requirements thereof
stand satisfied.

29. In this case, however, the respondent having
specially been empowered both under the 1946 Act as
also under the Code to carry out investigation and file a
charge-sheet is precluded from doing so only by reason
of Section 22 of TOHO. It is doubtful as to whether in
the event of authorisation of an officer of the department
to carry out investigation on a complaint made by a third
party, he would be entitled to arrest the accused and
carry on investigation as if he is police officer. We hope
that the Parliament would take appropriate measures to
suitably amend the law in the near future."

21. After survey of the relevant provisions and the
case law on the point we are of the view that in respect of
taking cognizance under the Act it may not be legal for a
Magistrate to take cognizance on the strength of a police
report under Sec.173 (2) of the Code. We have already
extracted the definition of the word 'complaint' and 'police
report' respectively in the Code. A complaint has been defined
as a request made orally or in writing to the Magistrate to take
action on the basis that an offence has been committed by a
person known or unknown. But, the Legislature has
specifically excluded police report. A police report, in turn,
CRL.MC No.935/2010 & connected cases -19-

has been specifically defined as a report forwarded by a police
officer under Sec. 173 (2) of the Code. No doubt, the
explanation to Sec.2 (d) of the Code treats a police report
forwarded in respect of a non-cognizable offence also as a
complaint. As far as the offence under the Act is concerned
it is not in dispute that it has been declared to be cognizable
by Sec.24 of the Act. Sec.25 of the Act contemplates
cognizance being taken only on the basis of complaint given
by the authorised officers. Undoubtedly police officers as
notified are also comprehended within the notification as
authorised officers.

22. The statute in question commands that a
thing must be done in a particular manner. In this case, it
dictates that the Court can take cognizance only on the basis
of complaint being given by certain named authorities. As
already held by the Apex Court in Jeewan Kumar Raut vs.
Central Bureau of Investigation (AIR 2009 SC 2763) a
complaint will not take within its scope a police report and
police report will not take within its scope a complaint. No
doubt, we must hasten to add that in the case of non-
cognizable offence a police report also tantamounts to a
complaint having regard to the terms of explanation to Sec. 2
CRL.MC No.935/2010 & connected cases -20-

(d) of the Code. We must notice that the learned Single Judge
in the decision reported in Mohanan v. S.I. of Police (2008 (1)
KLT 560) has proceeded to refer State of Bihar v. Chandra
Bhushan Sing & Ors. (AIR 2001 SC 429) in paragraph 8 and
taken the view that therein the offence was non-cognizable
offence and the court took the view that filing final report
instead of a complaint is bad. We must hold that the said
finding is contrary to the actual facts as are reported in State
of Bihar v. Chandra Bhushan Sing & Ors. (AIR 2001 SC 429).
In fact, as already noticed therein the Apex Court found that
what was filed was a complaint and the court also took the
view that it cannot be termed as a report under Sec.173 of the
Code.

23. It is true that under Sec.2 (d) of the Code
there is no particular form prescribed. A complaint can be
even oral. No doubt, it must satisfy the essential ingredients
in Sec.2 (d) of the Code, namely, it must relate to commission
of an offence by known or unknown person and there must be
request to take action. It may be true that in substance the
ingredients of a complaint could be culled out from the report
under Sec.173 (2). In fact, at this juncture we must notice
the submission of Sri.K.K.Dheerendra Krishnan, the learned
CRL.MC No.935/2010 & connected cases -21-

counsel appearing on behalf of the petitioner in CRL.MC
2622/2010 that the Code contemplates different procedures in
respect of cases taken cognizance of on the basis of
complaint and police report. He would point out that Sec.202
of the Code is not applicable to cognizance based on police
report. Of course, the question which we have to consider is
whether a police report can be interpreted and understood as
a complaint.

24. In all these cases we cannot overlook the fact
that a Division Bench of this Court in Moosakoya's case
(supra) has considered the question whether cognizance could
be taken on the basis of a report filed by a police officer
under the Code. As already noticed the Division Bench has
expounded its view as we have referred to and held that
cognizance cannot be taken on the basis of a police report.
The matter came to be considered by the Apex Court though
in the context of another enactment. The Court, on the basis
of its reasoning which it had already adopted proceeded to
approve the judgment of this Court. Thus, it could be said
that the Apex Court approved the principle which was laid
down. We cannot overlook the contention of Sri.M.R. Rajesh
that when the Apex Court pronounced the law on a point it
CRL.MC No.935/2010 & connected cases -22-

may not be open to this Court to overlook its command under
Article 141 of the Constitution on the footing that if another
point had been urged before it, it would have come to a
different conclusion. It is no doubt true that the specific
question as such as to whether a police report under Sec.173
(2) could be interpreted to be a complaint for the reason that
the contents of the report would suffice to answer the
description of complaint under Sec. 2 (d) of the Code was not
raised before the Division Bench in Mossakoya's case (supra)
or in the decision of the Apex Court. But, this does not mean
that when the Apex Court proceeded to hold that a complaint
cannot be treated as a police report and police report cannot
be treated as a complaint and also proceeded to approve the
judgment of the Division Bench of this Court, that we will be
free to hold that when the statute provides for taking
cognizance only on the basis of a complaint by authorised
officers complaint can be interpreted as meaning to take
within its meaning also a police report. The statute
unambiguously postulates a specific method for taking
cognizance. Generally, any person can set the criminal law
into motion. But, there are exceptions which are provided to
the said principle in the Code and also in various special
CRL.MC No.935/2010 & connected cases -23-

statutes. Instances of the exceptions are Sec.198, 199 of
Code of Criminal Procedure. Sec.25 of the Act is another
instance of a statutory prohibition against cognizance of the
offence being taken in any manner other than what is
provided therein. Therefore, the Legislature intended that
cognizance can be taken only in the manner which is
contemplated under Sec.25 of the Act. This means that
Legislature intended the provisions to be mandatory and it
intended further that what is provided therein is to be followed
without any deviation. We cannot assume that the Legislature
is unaware of the provisions of Sec.2 (d) or Sec. 2(r) of the
Code. That is to say, the Legislature was very much aware
that the word 'complaint' as defined in Sec.2 (d) does not
include a police report. The Courts would ascribe knowledge
of the existing law to the legislature when a law arises for
interpretation. This being the position though it may be
possible for the prosecution to point to the contents of the
police report and canvass that it may also answer the
description of a complaint, we are of the view that in the
nature of the statute and the decision of the Apex Court
approving the decision of the Division Bench in Moosakoya's
case and also the fact that the police reports in all these cases
CRL.MC No.935/2010 & connected cases -24-

do not give any indication whatsoever that is intended to be
filed as a complaint or even that it is filed by the police officer
as authorised officer under the Act cognizance taken in all
these cases would be hit by the prohibition contained in
Sec.25 of the Act namely that cognizance can be taken only
on the strength of a complaint. In all these cases, except one
ie. CRL.M.C.1948 of 2010, the only question which has been
raised and which is referred was the legality of the Court
taking cognizance on the strength of a police report under
Sec.173 (2). It is the common case of both the learned
counsel for the petitioners and also the learned Public
Prosecutor that no further question would arise after the
matter is answered by holding that a complaint would not take
in a police report under Sec.173 (2) of the Code and the
matter can be finally decided under Sec.7 of the Kerala High
Court Act. In the light of our decision we must proceed to
hold that the decision in Mohanan v. S.I. of Police (2008 (1)
KLT 560) cannot be treated as good law and we approve the
decision of the learned Single Judge in Abdul Azeez v. State of
Kerala (2010 (1) KLT 394.

these cases. It is made clear, however, that the quashing of
the cognizance taken will not be a bar for the authorised
officer to file complaints in accordance with law.
CRL.M.C.No.1948 of 2010:

Learned counsel for the petitioner has raised
another issue in this case. He would submit that the
Magistrate acted illegally in taking cognizance in view of the
fact that the police report is filed by the Assistant Sub
Inspector of Police who is not an authorised officer under the
Notification. When a matter comes on a reference before a
Division Bench or a Larger Bench it cannot decide matters
which are not referred to it. In such circumstances, besides
answering the issue referred, we send the matter back to
the learned Single Judge for passing appropriate orders,
leaving it open to the petitioner to urge the contention which
he urged before us.